Stream “Protection” Rule Imperiled

By John McFerrin

The January, 2017, issue of The Highlands Voice reported that the Stream Protection Rule would become final in January, bringing to an end over fifteen years of litigation, anticipation, and commentary.  According to the official press release from the Office of Surface Mining, the new rule “updates 33-year old regulations and establishes clear requirements for responsible surface coal mining that will protect 6,000 miles of streams and 52,000 acres of forests over the next two decades, preserving community health and economic opportunities while meeting the nation’s energy needs.”

The same issue of The Voice also predicted that, with a new President, new Congress, etc. something would happen.  It has.  Even though the rule is nominally final, and is in effect at least as of this writing, there are challenges pending that place it in grave peril.  Were there such a thing, it would be on the Endangered Rules List.

The Voice could claim points for prescient prognostication but this was too easy.  With a new President, new Congress, and same old coal industry, there had to be something.  Execution: 10; Degree of difficulty: 1.

Congressional action

There is a statute called the Congressional Review Act.  It allows Congress to pass a resolution prohibiting a regulation from going into effect.  The resolution must be passed by both houses of Congress and signed by the President.  This must be done within sixty days of the effective date of the rule.

Congressman Evan Jenkins (R, WV) has introduced a resolution voiding the Stream Protection Rule.  If it is passes in both houses of Congress and is signed by the President, it will void the Rule.  It will also prevent the Department of the Interior from promulgating a substantially similar rule in the future.

Now approximately sixty groups from all around the country have joined in a letter asking that Congress reject the resolution and allow the new Stream Protection Rule to stand.  Even though the West Virginia Highlands Conservancy has mixed feelings about the Rule (more on that later), it joined in the letter.

Legal action

In addition to the review under the Congressional Review Act, the Stream Protection Rule faces another challenge.  Mining company Murray Energy and fourteen states (including West Virginia) have filed actions challenging the Rule.  They claim what they always claim:  that the Rule is a dramatic executive branch overreach that interferes with other federal laws and ignores states’ roles as primary coal regulators.  They also claim that it would be difficult or impossible to comply with and would dramatically curtail or eliminate longwall mining.

A coalition of fourteen community organizations, including the West Virginal Highlands Conservancy, has asked that they be allowed to intervene in two of these actions.  They defend the Rule, contending, as OSMRE has, that the rules simply modernize outdated standards for protecting water and other natural resources from coal mining.

Most of the groups involved, including the West Virginia Highlands Conservancy, had spent the years while the rule was being considered demanding even stricter standards.  Scientific research has linked coal mining operations to downstream human health effects, particularly mountaintop-removal mining.

WVHC position

The West Virginia Highlands Conservancy has always been ambivalent about the new Rule because it takes the wrong approach.  WVHC has always contended that the way to protect streams from mining was to keep the mining away from the streams.  This was the approach taken by the earlier rules, passed in 1983.  Although never fully enforced, this rule effectively banned coal mining within one hundred feet of streams.

The new Rule assumes that it is possible to mine in and through streams if the company takes proper precautions and proper steps after mining to restore the stream.  Even though WVHC considers the assumption that streams can be destroyed and then recreated to be unwarranted, it still supports the new Rule because it improves current law in other areas.